Director of Public Prosecutions v Wuordol

[2025] VCC 246

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00083; CR-24-00084

DIRECTOR OF PUBLIC PROSECUTIONS

v

MUOCH WUORDOL
and
KOL NYAK

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JUDGE:	Karapanagiotidis
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2024; 28 November 2024; 6 December 2024
DATE OF SENTENCE:	7 March 2025
CASE MAY BE CITED AS:	DPP v Wuordol & Anor
MEDIUM NEUTRAL CITATION:	[2024] VCC 246

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing

Catchwords:              theft – armed robbery – home invasion – common assault – aggravated burglary – youth - restorative justice – plea of guilty - Bugmy

Legislation Cited: ss 5(1), 5(2)(H)(e), 6AAA Sentencing Act 1991 (Vic)

Cases Cited:Filiz v The Queen [2014] VSCA 212, Begg v The Queen [2020] VSCA 183; and DPP v Meyers [2014] VSCA 314; Azzorpardi v The Queen (2011) 35 VR 43; Bugmy v The Queen [2013] HCA 37.

Sentence - Wuordol: Total effective sentence of 370 days imprisonment, community corrections order of 30 months.

Sentence – Nyak:  Total effective sentence of 172 days imprisonment, two year community corrections order.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M. Fisher	Office of Public Prosecutions
For the Accused Wuordol For the Accused Nyak	Ms S. Locke Mr M. Weinman	BSW Lawyers Gallant Law

HER HONOUR:

1Muoch Wuordol and Kol Nyak, you have pleaded guilty to the following charges, you Mr Wuordol:

2Three Charges of theft (charges 1, 4, and 5); and

3One charge of armed robbery (charge 2); and

4One charge of home invasion (charge 3); and

5Common assault (charge 6).

6Mr Nyak you have pleaded guilty to:

7Three charges of theft (charges 1, 3, and 4); and

8One charge of aggravated burglary (charge 2); and

9One charge of common assault (charge 5).

10You have also both pleaded guilty and agreed to this Court hearing one summary charge of trespass.  In addition, you Mr Nyak have also pleaded guilty to one summary charge of drive whilst disqualified.

11The full circumstances of your offending are outlined in the prosecution opening, marked as Exhibit A. This constitutes the factual basis upon which I sentence you.  

Circumstances of the offending

12At the time of the offending, you Mr Wuordol were 20 years of age and you Mr Nyak were 18 years.   

13You were together from the afternoon of 8 June 2023 until your arrest at around 12:45PM the following day at Mr Nyak’s home.  

14Between about 6:45PM on 8 June and 1:00AM on 9 June 2023, a total of five incidents occurred across the Wyndham Vale, Ballarat and Geelong areas (incidents 1, 2, 4, 5 and 6). The two of you participated in all four of these incidents.  It is the prosecution case that you had an agreement, arrangement or understanding that the joint offending would take place. At least one other unknown male was involved in some of the offending, herein referred to as ‘unknown male.’ Further, you Mr Wuordol, acting alone, committed an armed robbery, the subject of charge 2. 

INCIDENT 1 – WYNDHAM VALE

Wuordol – Charge 1: Theft

Nyak – Charge 1: Theft

15On the evening of 8 June 2023 13-year-old Kurt Santiago[1] was travelling on a bus towards Wyndham Vale. He got off the bus at around 6:45PM opposite the Bears Rugby Oval in Wyndham and began crossing the street in the direction of the oval. As he was crossing, he saw three men standing at the bus stop on the opposite side of the street. 

[1] A pseudonym.

16Two of you called him over and engaged him in a conversation about the Sunshine stabbing, as outlined in the prosecution opening.  He was then asked what the time was and pulled out his mobile phone, which was a gold coloured iPhone 10. You Mr Wuordol then snatched the phone out of Mr Santiago’s hand. Mr Santiago tried to grab it back and you stated, “Give it to me or I will stab you bro.” You Mr Nyak then stated, “You don’t want to end up like the guy in Sunshine.” 

17Mr Santiago begged to have his phone back. You Mr Nyak pushed him away. Mr Santiago was then told, “We are going to poke you through,” which is alleged to be a reference to stabbing him.  

18Mr Santiago was also told that you had machetes. He saw that you Mr Wuordol had an item in your pants, which he believed to be a machete. It is not alleged by the prosecution that either of you were in possession of a weapon during this offending.  

19You Mr Wuordol asked Mr Santiago for his phone passcode. A friend of Mr Santiago’s then approached and you both left, travelling to the Ballarat area, with an unknown male.   

20Mr Santiago’s phone was located at your address Mr Nyak at the time of your arrest.  

INCIDENT 2 – DOMINO’S PIZZA, BAKERY HILL

Wuordol – Charge 2: Armed Robbery

Nyak: N/A

21A few hours later, at about 9:44PM you Mr Wuordol attended at Dominos Pizza at Bakery Hill.  

22Patrick Middleton was working behind the servery counter, and his manager was also in the store.     

23You approached the front counter and asked Mr Middleton if he had any pizzas to go.  You asked him about the ones located behind the counter and he explained they were customer orders.

24You became slightly agitated and began to move around the counter with Mr Middleton attempting to block you.  You then lifted your shirt on your right hand side to reveal a black kitchen knife handle and about one centimetre of a silver blade. Mr Middleton backed away and held his hands up. At your direction, he gave you two large pizzas. You then demanded that Mr Middleton open the till, which he did, giving you about $60.00 to $70.00 in cash.   

25You began to move towards the door. As you did so, you directed a customer who had just entered the store, to open the fridge and hand you three soft drinks and then to open the door for you.  Upon your departure Triple 0 were called.  The incident was captured on CCTV which was played in Court.    

26Whilst not involved in this offending, you Mr Nyak and the unknown male were nearby in an unidentified vehicle when this offending took place. Mr Wuordol you returned to this vehicle.  You then travelled to an address at Golden Point with the intention of entering the address and demanding persons present there to hand over property including keys to any motor vehicle. 

INCIDENT 4 – GOLDEN POINT

Wuordol – Charge 3 (Home Invasion), Charge 4 (Theft – mobile phones), Charge 5 (Theft – motor vehicle)

Nyak – Charge 2 (Aggravated burglary), Charge 3 (Theft – mobile phones), Charge 4 (Theft – motor vehicle)

27At about 11:30PM on 8 June 2023 Damien McKee, his partner Sofia Aleem and Ms Aleem’s daughter Aishwarya Thapa were at their home at James Street, Golden Point.  

28You Mr Wuordol had known the family as you had attended the same school as Ms Aleem’s son.  

29Parked outside the property were several vehicles, including a silver/grey Mitsubishi ASX , which was parked in the driveway facing away from the road. 

30Ms Aleem and Ms Thapa were both in the lounge room watching television when they heard banging on the back door. Believing it was someone she knew, Ms Aleem approached the door, which was unlocked.  She saw two men opening the door and enter the house.  

31At the time Ms Aleem did not recognise you Mr Wuordol.  

32During the offending you Mr Nyak remained outside the house, by the vehicle.  You intentionally assisted in the offending by keeping a lookout; and preparing to leave the premises in a stolen vehicle with Mr Wuordol.  

33You Mr Wuordol demanded mobile phones from Ms Aleem. You removed three sets of car keys, including keys to the Mitsubishi, from a bowl on top of the piano as well as Mr McKee’s phone. You also took Ms Aleem’s phone and various other items.  

34You then passed the keys to the unknown male, who left the house. You Mr Nyak and the unknown male turned the Mitsubishi around, ready for it to be driven down the driveway by Mr Nyak.  At this time, you Mr Wuordol exited the house. 

35Mr McKee was asleep when the two of you entered the house. He was awoken by screaming and went to investigate. When he entered the rear part of the house, he observed you Mr Wuordol standing inside the house holding a long metal bar which was black and had holes in it. Mr McKee had not seen this item before and it did not come from the address. At this point Ms Thapa and Ms Aleem were in the lounge room and could be heard screaming and telling you to take what you wanted and to leave.

36Mr McKee told you Mr Wuordol to get out. You hesitated briefly, then turned and ran out the back door. Ms Thapa recalls that you said to Mr McKee, “Do you want to fight?” before fleeing. 

37Upon leaving the premises Triple 0 were called and the operator was informed that the offenders had said that the family knew them.

38You both left in the stolen Mitsubishi, with you Mr Nyak driving. The unknown man left the premises separately, in the vehicle that the three of you had arrived in. 

39Items stolen from the address were later located at your home Mr Nyak at the time of your arrest. 

40The stolen Mitsubishi was located in Dardell Court, Norlane, the following day. The following items were located inside the vehicle: 

(a)   VW keys stolen from James Street; and  

(b)   A large metal pole similar in description to the item described by Mr McKee and Ms Thapa. 

INCIDENT 5 – BUNINYONG

Wuordol – Charge 6: Common Law Assault

Nyak – Charge 5: Common Law Assault

41Following the incident at Golden Point, the two of you travelled in the stolen Mitsubishi in the direction of Buninyong.  

42At about midnight on 9 June 2023, Eliza Neyenhuis was driving her friend Phoenix Connolly home. They were travelling in Ms Neyenhuis’ white Holden Cruze in a south-easterly direction on the Midland Highway, Buninyong.  

43Ms Neyenhuis noticed what appeared to be a silver Mitsubishi SUV behind her as she entered the highway from Buninyong. The vehicle was close behind.  

44Ms Neyenhuis could see your vehicle flashing its high beams behind her at the point where the road turned into a dual carriageway. You Mr Nyak, kept the high beams on.  

45Ms Neyenhuis was in the left lane. Mr Nyak you drove the stolen Mitsubishi into the right lane and overtook her. Ms Neyenhuis then moved to the right lane in order to turn right into Mr Connolly’s premises.  

46As Ms Neyenhuis put on her indicator, you Mr Nyak slowed down and put the Mitsubishi’s hazard lights on and stopped. 

47You Mr Wuordol then got out of the rear passenger seat of the stolen Mitsubishi and pointed a long item at Ms Neyenhuis, directly towards the windscreen of her vehicle. You were pointing the item as if it was a gun. 

48You kept approaching the vehicle. Mr Connolly could also see you approaching and told Ms Neyenhuis, to “Get out of [there].” She reversed until she hit the barrier on the side of the road, then she put the vehicle in drive and was able to head back down the hill away from you.  

49Mr Connolly described the item being held by you Mr Wuordol as looking like a shotgun. Both Mr Connolly and Ms Neyenhuis ducked down when they saw it and both were terrified. Mr Connolly called Triple 0 about 15 minutes later.

50The basis of this charge is the combined conduct of:  

(a)   Nr Nyak’s driving; and  

(b)   Mr Wuordol’s act of exiting the vehicle and pointing a pole, held like a firearm, at Mr Connolly and Ms Neyenhuis

which was intended to (and did) cause Mr Connolly and Ms Neyenhuis to apprehend and fear the immediate application of force.  

INCIDENT 6 – HAMLYN HEIGHTS

Wuordol – Related summary offence – Trespass s9(1)(e) of Summary Offences Act

Nyak – Related summary offence – Trespass s9(1)(e) of Summary Offences Act

51You both then travelled to the Geelong area, intending to steal another vehicle.  

52Paul Aitken lived at an address at Robb Avenue, Hamlyn Heights. In the early hours of 9 June 2023 he was asleep in bed. At about 12:50AM he was awoken by the sound of banging on the doors or window, and he heard voices saying, “Open the door”.  

53Mr Aitken could see a man (you Mr Wuordol) outside holding something up in his hands. He said “Piss off, I’m calling the police.” You continued to kick at the door and demand that Mr Aitken open the door. Mr Aitken called Triple 0. He then saw a second man (you Mr Nyak) look into the window then you both ran away.

54CCTV captured this incident, and it was played in Court.   

55As a result of the reports to police, an investigation was commenced in the Ballarat and Geelong areas, as outlined in the prosecution opening.  

56At about 10:00AM on 9 June 2023, investigators from the Western Region Crime Squad were conducting a patrol of the Corio area when they saw the stolen Mitsubishi ASX vehicle travelling west on Purnell Road. It was displaying false registration plates . You Mr Nyak were seen by police to be driving and you Mr Wuordol were sitting in the passenger seat. 

57Investigators later saw the two of you abandon the Mitsubishi ASX in Dardell Court, Norlane. You then went into Mr Nyak’s home at Donnybrook Road, Norlane. 

58At about 12:45PM police entered and searched the address, arresting you both and seizing items, as outlined in the opening, connected with the offending.  Both your phones were also examined and you were interviewed.  You Mr Wuordol exercised your right not to answer questions. 

59In respect of the unrelated summary matter for you Mr Nyak, on 19 September 2023 you were disqualified from driving by the Geelong Magistrates Court for a period of 12 months in relation to driving at a speed dangerous.   

60Following your release on bail on 25 May 2024, you were observed by police at approximately 11:06AM on 7 June 2024 to be driving a motor vehicle on Brunt Road in Beaconsfield.  You were intercepted and questioned.   

Victim Impact

61One of the victims of your offending, the subject of incident 4, Mr McKee, provided a victim impact statement (Exhibit B, as amended), which he read to the Court at the first plea hearing on 22 August 2024.  In that statement, he speaks of how your offending has undermined both his own and his family’s sense of safety and trust. ‘Our sense of safety in our home was significantly compromised.’  ‘Because we know one of the accused our sense of trust in those who we have supported, and attempt to support in the future, has been compromised.’  Also, Mr McKee speaks of the family’s relationship with you, Mr Wuordol and the betrayal experienced.   His victim impact statement continues: ‘We have a strong desire to resolve this issue with Mouch personally.  We want to give Muoch the opportunity to explain his actions and apologise to us.  We are all prepared to do this.’  True to this sentiment, Mr McKee and his family did go on to afford you this opportunity, which I will return to shortly.   

62As for the impact of the offending, clearly it represented a significant intrusion into the lives of Mr McKee and his family and their sense of security and sanctity in their home. I have taken this into account in arriving at the appropriate sentence in this case.

Gravity of offending

63In assessing the gravity of your offending the starting point is the applicable  maximum penalty for each offence. Your offending is plainly objectively serious.  I regard the most serious offending to be the home invasion and the aggravated burglary – both relating to the one incident (incident 4). In your case Mr Wuordol you entered the home with another, with the intention to steal, and in possession of a metal pole.  Your role Mr Nyak was limited to acting as a look out and it is not suggested that you entered the home or that you physically carried a weapon.  However, you knew that your co-accused was armed with an offensive weapon and intentionally assisted in the offending, as outlined in the prosecution opening. In the circumstances, where weapons and disguises were used, I accept the prosecution submission that the offending involved a degree of planning. I also take into account that the offending took place close to midnight, no doubt heightening the fear that was experienced.  

64Further, in assessing this offending, I have considered the principles and guidance provided by the higher courts in such cases as Filiz v The Queen, Begg v The Queen and DPP v Meyers, as suggested by the prosecution[2].  As for the particular facts of the cases referred to, there are some notable differences with your case.  Begg v The Queen involved several aggravated burglaries, including by entry with a loaded firearm.  In Meyers the appellant smashed through the rear door of the home of his former intimate partner, with the intent to assault whilst armed with a double-barrel shotgun. The case of Filiz also involved forced entry into a former partners’ home with the intent to assault. These observations are not intended to undermine the seriousness of this particular instance but rather to make the point that each case needs to be decided and assessed also on its own facts. I regard the offending in those cases as objectively more serious than the current offending.

[2] Filiz v The Queen [2014] VSCA 212, Begg v The Queen [2020] VSCA 183; and DPP v Meyers [2014] VSCA 314.

65Charges 4 and 3, respectively, relate to the theft from the property and they are each rolled-up charges.  Charges 5 and 4 in each of your cases relate to the theft of Mr McKee’s motor vehicle.  

66Both home invasion and aggravated burglary carry a maximum sentence of 25 years’ imprisonment.  Mr Wuordol the charge of home invasion is a category 2 offence, thereby mandating a term of imprisonment unless an exception is enlivened.   As the higher Courts have stated, ‘Home invasion is a form of aggravated burglary.  By its introduction of mandatory sentencing requirements for the home invasion offences,  the legislature has signalled that those offences are to be regarded – other things being equal – as more serious[3] . The Courts have made clear that in sentencing for such matters, ‘general deterrence is a sentencing principle of great importance’[4] .   

[3] Taleb v The Queen [2020] VSCA 329.

[4] Taleb, at [22]; Begg v The Queen [2020] VSCA 183.

67In respect of charge 1, which you both have in common, I take into account that the victim of your theft was an unsuspecting 13-year-old boy who was going about his day. I accept the submission made by your Counsel Mr Nyak that the offending was opportunistic and involved little planning.    

68Turning to incident 5 you each face rolled up charges (charges 6 and 5) relating to your entirely unprovoked assault on two victims who were in a car at the time and were forced to take evasive action to escape you.  I have already referred to how the prosecution put this case against you both.  

69Mr Wuordol you alone face a charge of armed robbery – which is incident 2.  In terms of sequence, this occurs after the theft (incident 1) and before the home invasion (incident 4).  I accept your Counsel’s submission that the offending can be described as relatively fleeting and that no actual violence was used.  It is nevertheless serious.  You brandished a knife on your victim, who was at work at the time. Although there is no victim impact statement the circumstances of the offending were clearly confronting.  

70Finally incident 6 relates to your unlawful trespass onto Mr Aitken’s property.  In the early hours of the morning he was confronted with you calling out and banging on his door. I note that the maximum penalty for this charge is 25 penalty units or imprisonment of six months. 

71Mr Wuordol, in your case I also take into account that you offended during the operational period of suspended sentences, imposed in the Northern Territory (see 6/12/21 and 28/4/23).

72Individually and collectively the offending that you have each pleaded guilty to is serious and, subject to some sensible adjustment to reflect your youth, your moral culpability is high.  

73While there are separate incidents and victims I take into account that all the offending occurs within a relatively close and confined period of time, that is over approximately 6 hours on 8 into 9 June 2023.   

74It seems that both of you at the time of your offending were under the influence of alcoholor drugs.  While it may offer some explanation this is no excuse for your conduct or for you to engage in this spate of offending.   

Plea of guilty

75Your cases resolved after the matter had been listed for trial but prior to the commencement of the trial circuit.  I note that a number of witnesses were cross-examined at the committal hearing. While not an early plea I accept the submission made on behalf of each of you that the plea is still a valuable one.  It has utilitarian benefit and indicates a willingness on your part to accept responsibility.  In your case Mr Nyak I take into account that you did in fact indicate a willingness to plead guilty at an earlier stage, that is pre-committal, to the charges of aggravated burglary and theft of motor vehicle, the subject of incident 4.

76In your case Mr Wuordol, psychologist Mr Austin Campbell indicates that your memories of the offending are limited given your state of intoxication but that you were disappointed in yourself and you appeared to take responsibility for your offending (at [28]).  You expressed remorse and a desire to improve your capacity to function in the community (at [39]).  Mr Nyak, according to psychologist Ms Rebecca Fakhri you demonstrated limited insight into the offending however you did express some remorse and empathy. After the first court appearance where the victim impact statement was read out, with the assistance of Youth Justice you wrote an apology letter to the victims of your offending.  In the letter you state:

I want to begin by acknowledging that no one should ever experience trauma or feeling unsafe, especially in their own space.  I deeply regret my actions and the pain they caused.  I am truly remorseful for what happened and extend my sincerest apologies to all the victims.

Personal circumstances

Wuordol 

77Your personal circumstances were canvassed by your Counsel and by Mr Campbell in his report of 26 October 2024 (exhibit MW8). 

78You are now 21 years of age .

79You are of Sudanese background.  You were born in Sudan and moved to Australia when you were one year old.  You have two siblings and your father has also recently had a baby in his new relationship.

80Your family settled in the Ballarat area where you spent most of your childhood.  You describe a challenging upbringing.  Your parent’s relationship was marked by ongoing conflict and instability. You recall frequent episodes of family violence and you told Mr Campbell that your parents ‘never got along.’  When you were 14 years of age your father returned to Sudan causing you to feel abandoned and resulting in a significant deterioration in your behaviour. You remained focused on playing football as a means of coping and this helped you focus and maintain stability.

81Within this context, from a young age you have experienced anger, stress and anxiety. Mr Campbell considers it likely that you presented with an Oppositional Defiant Disorder which in turn has likely impacted your functioning (at [24]). He also considers that the ongoing instability within the family home and experiences of family violence throughout your parents’ relationship appear to have resulted in the development of an insecure attachment style (at [32]).

82When you were 16 years of age and halfway through Year 10 your mother relocated the family to Alice Springs.  You spoke to Mr Campbell of being very frustrated by this decision.  At the time you were playing football to a high level in Victoria. The move disrupted this and threatened your promising opportunities.  You spoke of struggling to adjust following the move to Alice Springs and of feeling angry and betrayed by your mother.  Your behaviour further deteriorated and you ‘rebelled’ and were using alcohol and illicit substances regularly. 

83You remained in Alice Springs for six months before returning to Victoria in late 2019. You then attempted to re-enroll in school, but it was too late, and you continued associating with antisocial peers and spending periods in Youth Justice.  In 2020, facing the prospect of further Youth Justice detention you returned to Alice Springs where you remained until you were arrested in December of that year.

84I have been provided with and have read the reasons for sentence in respect of the plea heard in the Supreme Court of The Northern Territory.  You pleaded guilty to two charges of armed robbery, in company.  These offences were described as ‘very serious’. The maximum penalty for each offence was life imprisonment.  You were 17 at the time of the offending and 18 when you were sentenced.  Your prior history is mentioned, though it was noted that your past offending was committed in a short period between 29 March and 21 August 2020. You were first remanded in youth detention and then after you turned 18, you were placed in adult prison.  The Court specifically took into account your plea of guilty and your youth and sentenced you to a total period of 4 years, beginning on 18 January 2021.  After the service of 18 months imprisonment, the remainder of your sentence was suspended for an operational period of three years with conditions which included supervision and parole compliance.      

85You therefore spent 18 months in custody before being released on probation, some two months after turning 19.  This represented your first prison sentence.  You referred to a positive period on parole but then to ‘pushing boundaries’ as your supervision requirements decreased.  You returned to regularly using substances and getting into some further trouble.  In the lead up to your offending which is currently before the Court you were visiting Victoria with the intention of returning to Alice Springs. You told Mr Campbell that at the time of offending you had been using a variety of substances and were drinking to excess for a number of days (at [27]). 

86You report a history of using alcohol excessively, smoking cannabis, and using MDMA.  Your use of MDMA had been consistent until your arrest for the current matters, with periods of abstinence occurring within controlled environments.  In the months prior to your offending you also began using cocaine. 

87Upon returning to the community you resided with your aunt, Nyibol Deng, in Ballarat. She gave evidence in Court at the hearing in November 2024, providing some further context to your families move to the Northern Territory.  She also gave evidence of the improvements and efforts you had made since your release from custody. In her most recent letter she refers to the ongoing personal growth she has witnessed and also the financial support that you now provide your mother and siblings.

88You describe your relationship with your aunt as a positive and supportive one and you also have a good relationship with your three cousins. Your mother has recently returned to Ballarat from the Northern Territory and while your relationship is still somewhat strained, it continues to improve.  In more recent times your bail was varied to enable you to return to live with her and your younger siblings in Mount Pleasant.

89You continue in full-time employment with Kings Marine Scrap Metal in Ballarat.  Your employer, Mr Damian Connor, has attended Court now on several occasions in support of you. Your Counsel submits that beyond offering you employment, Mr Connor has taken an active interest in your rehabilitation.  He has known you since you were a teenager and both you and his son were selected for the Western Bulldogs next generation academy.  In his letters, Mr Connor confirms your ongoing employment and describes you as a ‘respectful, well mannered, hard-working and talented kid.’  He also describes you as showing great enthusiasm to your work and as ‘always willing to lend a hand and learn.’   In his most recent letter to the Court he confirms that you continue to work 5.5 days a week and are learning different skills .

90After being released from custody, you resumed playing football for Beaufort Football Club until the season finished in August or September of last year.  Preseason training has now recommenced, and the Beaufort Football Club has offered you a contract to play football for them this year.  During breaks in the season you have maintained your physical fitness and also started boxing training approximately three times a week.   

Nyak

91Your personal circumstances were outlined by your Counsel and are also canvassed in the psychological report of Ms Fakhri.  You are now 20 years of age and were born in an Ethiopian refugee camp after your parents fled violence and unrest in South Sudan.

92In 2007 you came to Australia with your parents, as refugees. You are one of six children and you report having a good relationship with your siblings. Your family first settled in the Colac area and then relocated to the South Eastern suburbs of Melbourne. 

93Your early years were marked by direct exposure to family violence, perpetrated by your father against your mother. You witnessed ongoing violence within the family home. Consequently, child protection became involved in the family for a period of some several years.  It is within this context that your parents separated in 2014, when you were 14 years of age.  Your father has since relocated to Alice Springs and re-partnered.  Presently you only have very little contact with him though you have aspirations of eventually moving there to rekindle your relationship and start afresh.

94You attended several primary and secondary schools but only completed school up to year nine. It seems that your attendance rapidly dropped off at the age of 15, which coincided with the separation of your parents and with you getting into trouble. You told Ms Fakhri that you felt your parents’ separation impacted you. You began absconding from home and associating with negative peers and experienced growing resentment towards your father (at [22]).  It is also around this time that you left the family home and started living with your older brother.

95You enrolled in a General Education course at TAFE for year 10 but did not complete it.  You then commenced a roof tiling apprenticeship but left after one year. Whilst in custody at Ravenhall, you completed your construction white card and later worked as a powder coater in the prison workshop.

96You have a history of alcohol consumption and cannabis use, which started when you were around 15 years of age and persisted up until the point of your remand on these matters. In addition to cannabis use, you had experimented with other substances including cocaine, MDMA and Xanax. At the time of her assessment in August 2024, Ms Fakhri considered that you met the criteria for an Alcohol Use Disorder and Cannabis Use Disorder.

97You have a relevant prior criminal history comprised of matters dealt with in the Children’s Court. Your prior history includes violent and dishonesty related charges that occurred between 2019 and 2021 when you were aged between 15 and 17. 

98Given your personal circumstances and your past hardships, your Counsel relies upon the Bugmy principles in the general sense[5]. I accept that they do have some application, taking into account in particular your direct exposure to prolonged family violence and instability, resulting in child protection intervention. 

[5] Bugmy v The Queen [2013] HCA 37.

Remand period

99You have both spent periods on remand for this offending.  Mr Wuordol you were initially remanded and then released on bail on 12 June 2024 and have accumulated 370 days in presentence detention.  Mr Nyak you were remanded and bailed on 27 May 2024.  You have a total of 172 days in PSD, comprised of two separate periods (9/6/23-18/9/23; 19/3/24-27/5/24). Your period of remand commenced when you were 18 years of age and represented your first time in custody.  During this time and on the 19 September 2023, you were also dealt with for subsequent and unrelated matters and sentenced to six months imprisonment.  The pre-sentence detention that I have just referred to does not take this period into account.

Mandatory Provisions

100As already noted, in your case Mr Wuordol on Charge 3, a Court must impose a custodial order unless an exception applies pursuant to s.5(2H)(e) of the Sentencing Act 1991.

101Relying on this section, your Counsel submits that there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3.   

102The prosecution submit that the factors relied upon ‘fall well short of satisfying the ‘extraordinarily stringent requirements’ of the provision and that the nature and the gravity of the offending calls for an immediate term of imprisonment to be imposed.  

103As highlighted by the prosecution in their written submissions, in determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court –  

(a) must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1); and

(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and  

(c) must not have regard to-  

(i) the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or  

(ii) an early guilty plea; or  

(iii) prospects of rehabilitation; or  

(iv) parity with other sentences.   

104In addition, subsection (2I) provides that in determining whether there are substantial and compelling circumstances the court must have regard to:  

(a) the Parliament’s intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; and  

(b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence. 

105The Court of Appeal has also offered guidance in the application of this provision.  In Farmer v The Queen the court described s5(2H)(e) as a very high hurdle that will not often be surmounted[6]. The legislative norm is that Category 2 offences will attract an immediate term of imprisonment. In Lombardo v The Queen the court stated that it is apparent that the enquiry under (2H)(e) has two key steps[7].  First, the court must identify whether there are substantial and compelling circumstances, that is circumstances that are weighty and forceful and powerful, so as to justify not imposing a custodial sentence. 

[6] Farmer v The Queen [2020] VSCA 140.

[7] Lombardo v The Queen [2022] VSCA 204.

106The second critical step, if the circumstances are substantial and compelling, asks whether they are also exceptional and rare.  This is to be regarded as a composite phrase, 'It is a threshold which must be met before it is open to impose a non-custodial sentence'.  Properly understood it refers to circumstances that are wholly outside the ordinary factors typical of the relevant offence.   

107Applying the two steps to the mandated analysis calls for the sentencing judge to make an evaluative judgment once the underlying facts have been established and unaffected by notions of burden of proof.  It is possible that a set of circumstances may engage the exception in combination even when the constituent circumstances are mainly, or even wholly, relevantly common[8] .   

[8] See also DPP v Kenneison [2023] VSCA 321 [37]-[41].

108The Court of Appeal held in Lombardo that despite the accused’s youth, good character, remorse, grief and prospects of rehabilitation, these were not ‘exceptional and rare’ because they were frequent features of those charged with the particular offence[9] (dangerous driving causing death). Similarly, falling short of the test in Kenneison were a combination of factors including, the respondents low level culpability, parental responsibility for young child, assistance to investigating officials, genuine and sincere remorse and underlying health issues[10]. 

[9] Lombardo [88]-[9].

[10] DPP v Kenneison [2023] VSCA 321.

109The prosecution also referred to the case of DPP v Bowen to emphasize the high threshold of this section[11]. In that particular case, the sentencing judge did not consider the requirements of s.5(2H) and the Court of Appeal found that the section precluded the sentencing order made. It found that the applicant’s circumstances – relied on as ‘unique vulnerabilities, early plea of guilty, cooperation with police, remorse, categorization of offending and efforts made towards rehabilitation whilst on parole’ – did not come close ‘to satisfying the extraordinarily stringent requirements of s5(2H)(e) (at [53]).

[11] DPP v Bowen [2021] VSCA 355.

110Within the bounds of reasonableness whether an applicant’s circumstances meet the threshold requirement of s.5(2H)(e) is ultimately for the sentencing judge to determine and evaluate. ‘Every case will necessarily depend on its particular facts. Circumstances which individually are relatively common may in combination enliven the exception …’[12] .   

[12] Fariah v The Queen [2021] VSCA 213; see also DPP v Bowen [2021] VSCA 355; Kenneison.

111In summary, your counsel submits that the cumulative effect of the following matters amounts to substantial and compelling circumstances that are exceptional and rare: 

(a)   The victim of the home invasion, Damian McKee’s, attitude towards you;

(b)   The engagement by Mr McKee and you in a restorative justice conference at the invitation of Mr McKee; and

(c)   The impact of you relocating to Alice Springs part-way through Year 10. 

Destabilising impact of the move to Alice Springs

112Dealing first with your relocation to Alice Springs, your Counsel relies on the disruption in your teenage years which had a significantly destabilising effect.  As she puts it, in summary, you had stability, community supports, aspirations and significant prospects. This was disrupted in July 2019 by the move to the Northern Territory, where you struggled to adjust. In turn, your relationship with your mother suffered, your self-esteem was impacted, you became increasingly distressed and your circumstances deteriorated.

113As I have already noted, you did not want to relocate to Alice Springs part-way through Year 10.  You were still struggling with the consequences of your parents’ separation and were largely dealing with this by immersing yourself in football.  You had been identified as a rising star and accepted into the Western Bulldogs Next Generation Academy.  The move to Alice Springs came approximately a month after you had commenced at the Academy and you had to give up your spot. 

114Records from Alice Springs hospital, tendered on your behalf, confirm an involuntary admission on 16 December 2019 after you threatened self-harm in an argument with your mum.  This arose in the context of your expectation of moving back to Ballarat after living in Alice Springs for six months.  The emergency department records of 16 December 2019 note the following – ‘Mouch’s parents have separated and he is living with his mother.  They have moved to Alice Springs from Melbourne about 6 months ago.  He goes to school at OLSH.  He wants to return to Melbourne and says he was promised they would do so in December but his mother has decided to stay.  Tonight, this boiled over and he had a fight with his mother that resulted in the police and ambulance being called.  He was threatening to kill himself and his mother was very concerned by this.’  It is noted that the Psychiatry registrar spent time with your mother and relatives ‘trying to sort out a solution to this situational crisis’ and that no follow up was determined to be necessary.

115Your Counsel submits that your descent into problematic substance abuse, antisocial behaviour and criminal activity between 2020 and 2023 – when you were aged 17 to 20 ‘should be seen (partly) through that lens.’  Further, she submits that the impact of your relocation to Alice Springs – ‘something that was entirely outside of [your] control’ – is a substantial, compelling, exceptional and rare circumstance ‘when consideration is had to the opportunities that [you] lost in that move.’ 

Attitude of victims & Restorative Justice

116Your Counsel also relies upon the attitude of Mr McKee, the victim of the home invasion, towards you.  She submits his attitude can be gleaned by his statement of 15 August 2024, and the letter of Mitch Brogden of 30 September 2024 and Mr McKee’s own letter of 19 November 2024. 

117Your Counsel submits that it is evident from that material that Mr McKee would like to see you remain in the community. He states in his letter to the Court, ‘it is certainly our hope and wish that this work and community engagement continues.’ 

118Your Counsel submits that the attitude of Mr McKee also needs to be viewed in the context of the history of the relationship that you once had.

119

As I have already noted, in his VIS Mr McKee describes how your offending impacted his and his family’s sense of security and safety in their own home.  Further, with reference to you, he spoke of his family’s sense of betrayal.  He states:

‘...We took him in as a younger man and supported his learning as Sofia (my wife) tutored him in the very house he entered and was violent towards us.  He ate meals at our table.  He stayed overnight with my stepson Ajay.  Some years ago I intervened in a problem Mouch had at his High School as I knew many of the teachers at the school and they were directly dealing with the problem.  Mouch was able to continue there as a result of my support and my intervention. At a similar time Mouch, along with some other boys and girls (including my stepson) held a daytime party when my wife and I were away.  The underage teenagers spent an afternoon in our house drinking.  Of course when I arrived home everyone dispersed immediately.  It was Mouch who rode his bike from the other side of town especially to apologise to me for his actions.  That took a lot of courage’.  He later continues, ‘Mouch not only invaded our home, but he broke our trust and hope in him.’  He asks, ‘is this over for us?  I actually hope not.  We could easily just forget about the incident and move on in the hope that we never see Mouch or his offsider again.  But we have a strong desire to resolve this issue with Mouch personally. We want to give Mouch the opportunity to explain his actions and apologise to us.  We are all prepared to do this.  Are you Mouch?  Are you prepared to be courageous like you were that time you rode your bike over to our house to apologise?  If so, reach out to us ...’ 

120Your Counsel submits that Mr McKee’s attitude towards you appears to have been fortified by your participation in a restorative justice conference on 30 September 2024.  As she puts it, you have been the beneficiary of his and his family’s generosity. The process was also a challenging one and reflects your genuine remorse. You spoke to Mr Campbell about having engaged in this process and described the discussion as both ‘productive and insightful’ (at [39]).

121A report outlining the restorative conference dated 30 September 2024 was provided by Mitch Brogden, who facilitated the conference.  Those present included yourself, Mr McKee and his wife, Ms Aleem.  The primary objective of the conference was ‘to create a constructive environment for rehabilitative dialogue, wherein [you] and the victims could openly discuss the events in question and explore the steps [you have] taken towards personal and social rehabilitation.’  During the conference you provided an update on your efforts to reestablish yourself in the community.  You shared that you are in full time employment, play football with the Beaufort Football Club and that you are engaged in counselling.  You were invited to directly address the victims which you did.  You expressed remorse for your actions, shame and contrition.  Mr Brogden states, ‘he used the metaphor of a ‘snake’ to reflect the depth of his regret, explaining that he felt he had betrayed the trust Mr McKee and his family had placed in him over the years, a trust he had built prior to the offending.’  This led to a ‘more expansive and open conversation’ among the participants.  The letter continues:    

‘Mr McKee posed several questions regarding Mr Wuordol’s plans for the   future.  In response, Mr Wuordol expressed his ambition to pursue an   apprenticeship, specifically in cabinetry, with the long-term goal of becoming a builder.  He also provided insight into the period leading up to the offending, revealing that he had recently returned from Alice Springs, was unemployed, and was grappling with both mental health difficulties and substance abuse issues.  He contrasted this with his current situation, emphasising the stability afforded by his full-time employment and the strong social support network he has cultivated, particularly through his involvement with the Beaufort Football Club.  Mr Wuordol assured the victims that he was committed to his rehabilitation and that he would not engage in similar behaviour in the future.

It is important to note that, during the discussion, Mr McKee and Ms Aleem expressed that their motivation for participating in the conference was not so much to dwell on the impact of the offending on themselves but rather to assess Mr Wuordol’s rehabilitation and ensure that the progress he has made continues into the future.  They both highlighted that, in the years they had known him, they had always seen great potential in Mr Wuordol to lead a positive and productive life.’

122The facilitator concludes by indicating that during the conference you engaged in a forthcoming, meaningful and reflective manner.

123As I have already noted, Mr McKee provided a letter to the court, dated 19 November 2024.  In that letter he expresses that he and Ms Aleem appreciated the opportunity to meet with you and discuss the offending and ask questions of you about your behaviour on the night that you entered their home.  He confirms the accuracy of the facilitator, Mr Brogden’s report and refers to your acknowledgments and apologies.  He states:

‘We engaged in some positive discussion with Mouch about his desire to work in a trade and continue to participate in local sport. 

Thank you for the opportunity to participate in this process.  It is certainly our hope and wish that this work and community engagement continues.’    

124Your Counsel relies upon Mr McKee’s support as a substantial, compelling, exceptional and rare circumstance, made more so by the fact that –

(a)   Mr McKee was prepared to engage with you at a restorative justice conference; and

(b)   appears to have been so satisfied with your progress in the community to date that he wrote a letter of support to be tendered at your plea. 

Assessment

125As already canvassed, while there are more serious examples of home invasion, your offending was objectively grave. Your personal circumstances must be given less weight than the gravity of your offending and general deterrence is paramount. 

126Within this assessment, I also take into account your young age, which is an important factor. 

127In Azzopardi v The Queen, Redlich JA (with whom Coghlan AJA and Macaulay AJA agreed) identified three considerations which underlie the general primacy afforded to an offender’s youth as a sentencing consideration.[13] First, young offenders, being immature, are ‘more prone to make ill-considered or rash decisions’.  In that respect, they ‘may lack the degree of insight, judgment and self-control’ possessed by a more mature adult … Secondly, the courts recognise the potential for young offenders to be redeemed and rehabilitated. Thirdly, the courts are conscious that incarceration of a young person for an extended period in an adult prison may be counterproductive .’

[13] [2011] VSCA 372.

128As was also stated by the Court, as the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth[14] .  In addition, here, given the legislative provisions that apply in this case, the usual prominence given to rehabilitation for youthful offenders also must give way to general deterrence and denunciation.  As was seen in the cases of Farmer and Fariah youth nevertheless remains an important consideration.

[14] Azzorpardi [44].

129In your case, your youth is particularly relevant to contextualising and assessing the challenges and difficulties that you have experienced, and that are relied upon by your Counsel. The ongoing instability within the family home and your experiences of family violence likely resulted in an insecure attachment style (see Campbell). As a 17-year-old and against this backdrop, you were struggling and tried to immerse yourself in your football club and what appears to have been a very promising football career. The sudden move to Alice Springs, even though well-intended by your mother, was significant and impactful. I accept that it contributed to a rapid decline in your circumstances, as evidenced by the cluster of offending during this period of time and then your service of a substantial term of adult prison.  You have now restored supports and stability in your life, showcasing your real potential. 

130Moving onto Mr McKee’s attitude towards you and your participation in the Restorative Conference, in my consideration of these factors, I have obtained some guidance from the higher courts as to the use to be made of a supportive victim impact statement.  In Skura Eames JA stated as follows - 

13 Whilst judges must be careful that they do not allow the contents of a victim impact statement to unbalance the sentencing process so as to cause a miscarriage of the judicial sentencing discretion it is undoubtedly the case that consideration of victim impact statements in many instances would have the effect of producing a more severe sentence than a judge might, at first, have thought appropriate to the circumstances. If a victim impact statement can have that effect in encouraging a view of the case which would justify a more severe sentence, then in my view sentencing judges ought to give equally appropriate weight to a victim impact statement where the victim positively expresses support for the accused and argues for a more lenient sentence. I do not consider that the judge gave the statement appropriate weight in this case … As the sentencing judge rightly said, sentencing is not the function of the victims of crime, but of the state, through the judiciary. That said, it is by no means inconsistent with that principle for a sentencing judge to give full weight to a supportive victim impact statement, as was provided here.’[15]

[15] R v Skura [2004] VSCA 53 [13].

131Applying these principles broadly, a victim’s attitude itself cannot, and does not govern the sentencing approach and in assessing the need for general deterrence, the Court must have regard to the impact of the crime more broadly rather than merely upon the immediate victim[16]. Overall, it is the judge who must determine the appropriate sentence, not the victims, and that is so whether the victims are forgiving or vengeful. Having said that, in the circumstances, I do give full weight to the hope and wish, as expressed recently by Mr McKee on behalf of himself and his wife, that your ‘work and community engagement continues.’ 

[16] DPP v Anand (a pseudonym) [2023] VCC 1437 (17 August 2023).

132Turning to your involvement in the Restorative Conference, it has been more challenging to find judicial guidance in this jurisdiction on this point. There are many different models and regimes in different States that deal with this principle, some legislated. In broad terms, restorative justice is not focused on an offender achieving a benefit in the sentencing process but rather is ‘concerned with the attempt to repair the harm to the victim, relationships and the community done by the offending.’ 

133In assessing the weight I give to it as a relevant factor, I take into account that you engaged in this process voluntarily. I accept that you demonstrated remorse and insight into your offending and that the circumstances of the conference would have been challenging and confronting. Further, I accept that you expressed a genuine desire and commitment to reform.  I also accept that it has been an important restorative process for your victims, who have been able to question and confront you about your offending and your current circumstances and ambitions.   

134While none of these individual factors dictate a result or outcome, I do regard them as most unusual and as highly persuasive.  When considered cumulatively, I am satisfied that they constitute ‘substantial and compelling circumstances.’  To be clear and in summary, I regard the following factors as cumulatively meeting this significant threshold:

(a)   The disruption or upheaval you experienced, in the context of your youth and circumstances, which provides the broad context to your offending behaviour;

(b)   The victim’s attitude toward you in the unique circumstances of this case; and

(c)   Your involvement in a restorative conference.    

135Further, I regard these circumstances as ‘exceptional and rare’, in the sense that they are wholly outside the ‘run of the mill’ factors typical of the relevant kind of offending.  Without repeating what I have already said, you are a young man whose circumstances deteriorated within the unique context canvassed by your Counsel. You offended against people who knew and trusted you. You are now committed to your rehabilitation and your victims want to see you work towards this and for your ‘community engagement’ to continue. Your victims have benefited from the restorative conference in which you were confronted and challenged.  This process also afforded you an opportunity to apologise to them, engage meaningfully and commit to your reformation. Engagement in such a restorative process is rarely seen by this Court.  I consider the constellation of these factors to be powerful and certainly on my assessment unique and rarely encountered (and that justify not making an order under Division 2 of Part 3).

136Having made this finding, I must now consider other relevant sentencing matters and principles to determine the just and appropriate sentence in your case.

Additional factors

137In sentencing you Mr Wurodol, I take into account the factors that I have already referred to, including your personal circumstances, your disrupted history, the attitude of Mr McKee and your participation in the restorative justice conference.    

138Your Counsel also relies upon and refers to other matters including your rehabilitative prospects, family and community supports and remorse.

139In assessing your rehabilitative prospects I take into account the seriousness of the offending, its volume, your prior history, the fact that this offending breaches interstate suspended sentences and your subsequent matters.

140Your Counsel submits that, now aged 21, you are ‘at a critical juncture in [your] life after a significant period of instability and offending.’  She submits, ‘there is much work for him to do yet – on his mental health and his continued abstinence from drugs – but he is of an age where turning his life around remains a very strong possibility.’ 

141She relies upon, and submits, that you have demonstrated ‘a very promising commitment to [your rehabilitation] since being granted bail. You are employed full time, have engaged consistently with Headspace and Uniting (mental health and AOD counselling) and have been the subject of strict bail conditions.  The letter from Eva Handley of Headspace in Ballarat confirms your initial assessment in June 2024 and ongoing attendances. 

142You resumed playing football and have maintained good physical health and fitness. 

143While your Counsel notes that you have one pending matter for exceed PCA (0.5%) and unlicenced driving your conduct in the community since 12 June 2024 has been ‘in stark contrast’ to your behaviour prior to your remand.  In respect of the pending matter, your aunt also gave evidence of its circumstances which involved your sister requesting you pick up her school clothes from the laundromat around the corner.

144As already noted, you also continue to have ongoing and solid family and community support.  In addition, you have the support of Dane Adkins at Uniting and Shiree Pilkinton from the Centre for Multicultural Youth in Ballarat.  In his letters Mr Adkins confirms that since July 2024 you have received alcohol and other drug support and that your weekly engagement with the program ‘demonstrates a genuine commitment to maintaining positive behavioural changes.’  In his most recent letter he confirms that you have now successfully completed an episode of complex counselling for alcohol and other drug support, concluding on 15 January 2025.  You demonstrated commitment to self improvement and behavioural change. Ms Pilkinton in her letter confirms that you made contact with the Central for Multicultural Youth upon your release on bail and that you have been supported by providing information and options for apprenticeship and creative opportunities.

145As for work, I have already referred to the trust and confidence that Mr Conner, your employer, obviously has in you. You have recently enrolled in a Certificate III in Civil Construction Plant Operations and have already completed at least one module of the course and have arranged to complete further modules later in the month (exhibit MW12). Ultimately, as I have already noted, your long-term aspirations are to undertake an apprenticeship.

146On your behalf I received a number of character references, including from David Eldridge and Ann Foley.  As manager of the Ballarat Regional Multicultural Council from 2012 and 2022 Ms Foley met your mother and describes her as a dedicated and hardworking single parent, determined to provide opportunities to her children.  You and your family now lease a neighbouring home from Ms Foley and Mr Eldridge.  Ms Foley describes you as courteous and motivated and as supporting your younger siblings.  She also observes you to be a ‘conscientious employee attending work six days each week’ and prioritising fitness.  Mr Eldridge refers to the conflict between your criminal history and the person he knows.  Based on his observations he is confident that you can put your ‘juvenile history behind you’ and continue as a responsible young adult, contributing to his family and the community.’  He also observes that there is no benefit to locking you away in prison again. I note here, and as discussed in Court, there are a range of considerations, beyond your rehabilitation, that the Court is required to consider.

147In his assessment, Psychologist, Mr Campbell considers that your future prospects remain positive.  He considers that you would benefit from engaging in psychological intervention to assist in developing insight into your mental health and acquiring adaptive strategies to identify, communicate and manage experiences of distress without engaging in harmful or destructive behaviours.  You did not present with any significant barriers towards engagement in future treatment and spoke of a willingness to engage with any recommended supports. 

148Taking into account all relevant circumstances, including your young age, past hardships and the very promising progress you have made, I consider that you present with good rehabilitative prospects.   

Nyak

149Mr Nyak, in addition to your plea of guilty and personal circumstances, your Counsel also relies upon your youth and your prospects of rehabilitation. 

150As already noted you are now 20 years of age.  You were only 18 at the time of the offending.  Accordingly, you fall to be sentenced as a ‘young offender.’ I take into account, but will not rehearse here again, the well-established principles relevant to young offenders[17] . In this respect, Ms Fakhri in her report states at [73] – ‘it is relevant to consider Mr Nyak’s young age in this matter, as there is a significant difference in the psychosocial and neurological maturity of young adults in their late adolescence and early adulthood (aged 18-25) as outlined in the Sentencing Advisory Council’s report from December 2019 compared to adult offenders.  Mr Nyak is 19 years old (18 years old at the time of offending) and therefore his level of maturity and psychosocial awareness would already be reduced compared to the adult population. 

[17] R v Mills [1998] 4 VR 235; Azzopardi.

151You were granted bail on strict conditions to live with your mother and siblings in Pakenham.  Part of your bail was to engage with a Youth Justice Supervised Bail program.  I have received several reports from Youth Justice as to your progress.  In the last report of November 2024 Youth Justice confirms that you have demonstrated a positive response to your supervision appointments, you have engaged with ‘core-intervention strategies’ and have collaborated in identifying goals and your ‘criminogenic risk factors in the community.’ 

152You have attended 23 out of the 25 scheduled appointments (see report 27/2/25). You have also received treatment for psychosocial interventions from Caraniche Forensic Youth Services.  You have continued to comply with all special conditions of bail. Having previously been referred to the Youth Support and Advocacy Service around your alcohol and substance usage, Youth Justice have assessed that you do not currently present with relevant concerns given the harm minimisation strategies implemented in supervision appointments.  You have maintained abstinence for a substantial period of time now. You had some recent full-time work as a roof tiler and Youth Justice supported you and identified working as a significant protective factor.   This employment came to an end in late June 2024 but you have now engaged a job recruitment agency named Asuria to help identify possible employment opportunities. You have also been focusing on your fitness and musical endeavours and have been engaged in the PIVOT program which provides mentoring and assistance to young people in the community.  The report writer concludes that since your placement on Supervised Bail you have ‘demonstrated strong compliance with the requirements’ of the program. 

153I have already referred to the charges for which you were sentenced to 6 months imprisonment.  You have also been charged with a further offence of driving whilst disqualified, which is the unrelated uplifted matter now before this Court.  Your Counsel makes the point that this was not alleged to be driving in the context of joy riding or other offending but rather demonstrative of a poor and immature decision to drive to a Youth Supervision appointment for which you were running late.      

154Senior Practitioner Youth and Family Worker, Michelle De Alwis, of PIVOT  provided a letter outlining your engagement in the program.  You were first referred in July 2024 and she confirms you have maintained regular attendance and active participation.  She states, ‘Kol’s dedication to connecting with support services, rebuilding family relationships, and pursuing employment opportunities is evident … Despite the challenges Kol has faced, he remains committed to personal growth and achieving long-term positive change.’  The program is committed to supporting you through your 12-month engagement, which concludes in July 2025.  In her updated letter to the Court she speaks of your continued progress and active participation.  She further notes that recently you have been referred to Skills First Reconnect and will shortly be completing a Forklift Training course to enhance your employment prospects.

155You describe your family as supportive and speak proudly of the achievements of your siblings.  Youth Justice also assess your family as ‘pro-social’ and as providing support to you.  Your older brother, Titit Nyak, a youth engagement officer, provided a letter in support of you.  He speaks of the challenges you experienced growing up, the progress you have made and of your potential to succeed..  You have also had a number of family members, workers and friends attend to support you in Court during these proceedings. 

156Ms Fakhri assesses your risk of reoffending as ‘moderate.’ Your risk is elevated by your prior offending being relatively similar in nature, a history of polysubstance use, unemployment, untreated mental health and emotional and personal factors and negative associations [66]. Your risk is reduced by your motivation and awareness of your mental health, interest in receiving psychological support and positive engagement with Youth Justice. Ms Fakhri also makes a number of useful recommendations in her report that will assist in progressing your rehabilitation.

157In all the circumstances, also reflecting on your young age, your own background of trauma, your recent and prolonged engagement with Youth Justice, your family support and the commitment you presently show to your rehabilitation, I consider that your prospects of rehabilitation are very promising.  

Other matters

158Through the court process there has been some delay in the finalisation of your cases, which I also take into account.  When the matter was originally listed before the Court for plea on 22 August 2024 it required an adjournment in order to obtain psychological reports and to also enable the foreshadowed restorative justice process to be undertaken.  On 6 December 2024 the court further adjourned your case for reasons which included obtaining a youth assessment report for you Mr Nyak. As already indicated, I have assessed and taken into account your progress during this period.  It is also appreciated that you have been in a state of uncertainty as to your future liberty for what is now a reasonably substantial period of time since the offending and I take this into account.

159Parity considerations also are relevant in your case.  Some of the charges on the indictment you share in common.  The charges you face on incident 4 are different and in your case Mr Nyak the mandatory provisions are not triggered. However, I consider that the home invasion and the aggravated burglary are broadly of a similar gravity.  I do take into account the different roles you each played, including that you Mr Wuordol entered the home while equipped with an offensive weapon.  Also, Mr Wuordol you face an additional armed robbery charge.  Further, there are some differences in your personal circumstances which justify a degree of differentiation.  While both of you were very young at the time of the offending, you Mr Nyak were only 18 years of age. Also, while your prior criminal histories are broadly similar, you Mr Wuordol committed this offending while on suspended periods of imprisonment imposed by the Northern Territory Court. 

Sentencing purposes

160The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community.  Given your young age, I accept that rehabilitation is a prominent consideration. General deterrence and denunciation remain important, also given the nature and gravity of the offending, particularly as it relates to the home invasion/aggravated burglary and the armed robbery. The community expects that such offending will be denounced and punished.  Specific deterrence and community protection are also relevant given your prior criminal histories though in this respect I do also take into account the sustained positive progress you have both demonstrated in more recent times. 

161I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991, where relevant in your case.

162In sentencing you both I take into account the principles of proportionality, parsimony and totality.  While there is a need to reflect the separate criminality and victims involved in the offending, totality is an important consideration given the temporal connection between the offences and the confined period involved.

163Comparable cases were referred to by Counsel in a broad manner.  Your Counsel Mr Nyak also pointed to sentencing statistics which indicate that while most sentences for aggravated burglary involve the imposition of a term of imprisonment, community correction orders have been imposed. He urges the court impose a combination sentence.

164In your case Mr Wuordol your Counsel submits that a combination sentence, involving an appropriately tailored and sufficiently onerous CCO is within range. The Crown’s submission is that, taking into account all material, including the most recent favourable assessments, the only appropriate sentence is one of immediate imprisonment that is constituted by a head sentence and a non-parole period.

165In your case Mr Nyak the Crown submit that either a head sentence is required with a non-parole period or otherwise, given your young age, it does not oppose the imposition of a Youth Justice Centre order.    

166I had you both assessed for corrections orders and also you Mr Nyak were assessed for suitability for a Youth Justice Centre Order.  All assessments were favourable.  Mr Wuordol, corrections note that you have no prior involvement with their service.  You expressed to the assessor remorse for your actions and showed insight into the impact of your behaviour and indicated that you had cut ties with your previous pro-criminal friends.  They assess you as having a low risk of general reoffending.  You were also assessed by a Forensicare clinician who did not recommend a mental health treatment, notwithstanding the recommendations of Mr Campbell. The clinician considered that while your exposure to family violence had impacted on your adolescent identity and stability, this was not demonstrated during assessment and there were no indications of any significant mental health condition requiring immediate treatment. 

167Mr Nyak you were assessed as suitable for both a corrections order and a Youth Justice Centre Order. You expressed appropriate remorse in your assessment with corrections, presented with current and sustained stability and you were considered to present a medium risk of offending.  It was also noted that you had no prior involvement with their service.  You too were assessed by the Forensicare clinician who noted the family history of violence and department intervention but considered that you did not present with any evident mental health difficulty and therefore did not recommend mental health treatment.  In this respect, I do note that the recent youth justice report considers that you require ‘high level specialist support to address [your] ongoing severe mental health issues, substance abuse, and behavioural concerns.’  You were also assessed as suitable for a Youth Justice Centre Order, particularly in light of your positive engagement with Youth Justice while on bail. 

168A community corrections order, I accept, is an intrinsically punitive order and particularly in the case of young offenders, can be used to rehabilitate and punish simultaneously. As the Court of Appeal stated in Boulton’s case[18] –

A CCO is likely to be a particularly important sentencing option in the case of a young offender, where there may be a perceived conflict between the need to punish the offender and the importance — both to the community and to the offender — of rehabilitating the offender.

Since the CCO can be used to rehabilitate and punish simultaneously, the conflict is likely to be reduced. Instead of needing to give less weight to denunciation or specific or general deterrence, in order to promote the young offender’s rehabilitation, the court will be able to fashion a CCO which adequately achieves all of those purposes at once.

[18] Boulton v The Queen [2014] VSCA 342.

169In sentencing you I take into account all the submissions made by the prosecution and your respective Counsel, the gravity of the offending, the significant mitigating factors raised on your behalf and also the substantial periods that you have already served in custody on remand for these matters. 

170After much reflection and consideration, I consider that all purposes of sentencing, including the retributive and deterrence purposes of punishment, can be adequately met by the imposition of combination sentences in both your cases, which do not require your return to custody or detention.  I also consider that rather than jeopardising or disrupting your continued engagement and development in the rehabilitative process, this sentence will provide you an opportunity to complete it. This is something in which the community also has a considerable vested interest.

Sentence

171Synthesising all relevant factors, you are convicted on all charges and sentenced as follows:

Wuordol

172Charge 1, theft, five months’ imprisonment;

173Charge 2, armed robbery, eight months’ imprisonment and a two year and six month community corrections order with conditions;

174Charge 3, home invasion, 370 days’ imprisonment plus a two year and six month community corrections order with conditions;

175Charge 4, theft, six months’ imprisonment;

176Charge 5, theft, six months’ imprisonment; =

177Charge 6, common assault (rolled up), community corrections order of two years and six months’ imprisonment;

178Summary offence of trespass, a community corrections order of two years and six months;

179I make clear in imposing conditions that I have had regard to the recommendations of corrections.

180I indicate pursuant to s40 of the Sentencing Act 1991 (Vic) that the community corrections orders I have imposed are the one order.

181In terms of conditions that I am imposing, Mr Wuordol, you are required to undertake and complete 270 hours of community work, and I offset 80 hours against treatment. In other words, if you engage in treatment you get credits of up to 80 hours, otherwise you need to complete that work. I have imposed that work and the conditions that i am about to refer to bearing in mind the many commitments you have, but as indicated, Mr Wuordol, this is a punitive order, it is not just about your rehabilitation, and you must prioritise it and manage it. Do you understand?

182ACCUSED WUORDOL: Yes.

183The conditions are as follows. Supervision, which although is not recommended by Corrections, and I have reflected on this, they raise a risk of over-service. I do consider that supervision is necessary, and taking into account the recommendation I intend to impose it for the first 16 months of the order, which I am entitled to do, unless Counsel tell me otherwise, pursuant to s48E(4) of the Sentencing act. Supervision is imposed for the first 16 months of the Corrections order.

184Again, there is a conflict in the assessment and material before me as to mental health, but I consider that it is appropriate to impose a condition that you engage in treatment for mental health. An assessment and/or treatment, it will be a matter for Corrections.

185Also, I consider it appropriate to impose a condition for drug and alcohol treatment on this order. Bearing in mind the recommendations of Corrections, I have considered that I will not impose a program condition. Those are the conditions of the order.

186No orders for cumulation.

187Pursuant to S.18, I declare you have served370 days of pre-sentence detention.

188Pursuant to S.6AAA, had you not pleaded guilty, I would have sentenced you to a period of 4 years, 2 months’ imprisonment with a non-parole period of 2 years, 4 months’ imprisonment.

Nyak

189Charge 1, theft, four months’ imprisonment.

190Charge 2, aggravated burglary,  172 days’ imprisonment, plus a community corrections order of two years;

191Charge 3, theft (rolled up), four months’ imprisonment;

192Charge 4, theft, four months’ imprisonment;

193Charge 5, common assault (rolled up), two year community corrections order;

194The summary charges of trespass and drive disqualified are also part of the two-year community corrections order.

195The conditions that I impose on you, taking into account the assessments that I have before me and all of the material, are 200 hours of community work, and I am offsetting 60 hours. As you heard me say to Mr Wuordol, if you engage in treatment you will be credited 60 hours, otherwise this is work that you must undertake, you must prioritise

196I impose a supervision condition, I impose a mental health treatment condition, and it will be a matter for Corrections to assess and see what treatment you need.

197I impose also a drug and alcohol treatment condition. I understand Corrections do not recommend it, and I understand the reason for it, you have engaged very positively, you have been abstinent now, which is a considerable achievement, for a substantial period of time but often, Mr Nyak, can I indicate this, it is the experience of the Court that many of these issues that have been sustained can be difficult to address and interwoven, and it may be that you require further assistance. So that is why I am imposing it. I do consider it as this point in time that they are necessary conditions.

198Following their recommendation, I am not imposing a program condition.

199No orders for cumulation.

200Pursuant to s.18 I declare that you have served 172 days in pre-sentence detention.

201Pursuant to s.6AAA, I can indicate that I would have imposed, had you not pleaded guilty, a Youth Justice Centre Order in the vicinity of some three years.

202Pursuant to s.40, the Corrections order that I have indicated is the one order. And I should also make plain that all terms that I have imposed of imprisonment of Mr Wuordol and Mr Nyak are to be served concurrently. No orders of cumulation have been made given the structure and the nature of the sentence that I have imposed.

203I make the disposal and forfeiture orders in the terms sought, [unopposed].

204A drivers licence order is sought pursuant to s.89(4) of the Sentencing Act with respect to the theft of motor vehicle charge (Mr Wuordol charge 5, Mr Nyak, charge 4).

205You are both in a position, as I understand it, to obtain your licence should you pursue the necessary requirements or the process, and that is a matter for you to understand and to ensure you do.

206I take into account what I have already canvassed as to your positive prospects of rehabilitation, your commitments, your work, the attempts, Mr Nyak, for example, that you are making to obtain employment and the importance of it in particular for both of you as a protective factor, and I take into account your youth.

207So pursuant to s89(4) of the Sentencing Act what I propose to do is suspend you both from driving for a period of three months. 

208So I make it clear that you cannot drive whilst you are suspended or disqualified from driving, it is a criminal offence, it will breach this Corrections order. 

209In a moment you are both going to take a seat and the order will be provided to your counsel, they are going to read through it with you.  You have never been on an order, there are core conditions, conditions that everybody needs to comply with, along with the special conditions that I have imposed.

210Now, you will read through those and that document you will have to sign indicating your agreement to it.  The way you can breach an order is if you breach a condition, you don't do what is required of you.  And remember, your priority as of today needs to be this order.  If you consider it is restrictive, I can indicate to you as you both well know, it is more restrictive to be sitting in custody.  So make it your priority, you have got all the support that you need.

211You can also break it or breach it if you commit another offence during the operational period.  So as of today, Mr Wuordol, two and a half years for you.  As of today, Mr Nyak, two years for you commencing today. 

212If you commit an offence punishable by imprisonment, within that period of time, it breaches the order.  What can happen is you come back before me, you will be dealt with for the breach, and it is open for me to re-sentence you.  And I think I have made plain in these reasons for both of you that this was a difficult decision and that this offending is serious.  So it is a punishment, but you also must view it and embrace it as a very real opportunity.  Do you understand?  All right, you can both take a seat.